Jim Moran

Mr. MORAN

Mr. MORAN. Mr. Chairman, most of my colleagues on the other side and on this side are aware that I introduced an unfunded mandates bill about 4 years ago. Most of the provisions that were in that bill are also included in this bill. But there are some very important provisions that are not. This amendment deals with one of those. This amendment would require that when Federal agencies issue a notice of proposed rulemaking, receive comments back from the private sector and from State and local governments that would be affected by the new rule, that they choose the least costly alternative method of implementing the intent of the legislation. And if they do not choose that least costly alternative, then they must at least explain why they did not. I think this is a terribly important provision to include in our unfunded mandates bill, Mr. Chairman. The amendment simply asks that the Federal agencies act rationally. It does not tie their hands. But the fact that they have not, in many cases, acted rationally is the core problem for many of the issues that have come to the floor over the last week and a half during this unfunded mandates debate. One such issue is that of the emissions inspection requirement under the Clean Air Act. Now, when the Environmental Protection Agency issued its regulations, they got a lot of comments back. But they chose to impose a cookie cutter approach to implementation of the Clean Air Act. That is why so many Members, and it happened again this morning, have risen opposed to that Federal agency's regulations. There are far better ways of implementing the intent of the Clean Air Act, a concept that I agree with, I agree with the intent of the legislation. I very strongly disagree with the way in which the Environmental Protection Agency has chosen to implement that legislation. For example, they have required in many States to have central testing facilities, facilities that did not exist before, facilities that are not equipped to make the repairs necessitated by the rejection of the emissions test. And so we have a ping pong effect where citizens not only have to wait in long lines but they have to go back to a repair station, get the repair done. They cannot know whether it is going to pass or not until they go back to the central testing facility, and then oftentimes they ping pong back and forth. And it takes up the entire day or several days. No wonder the American people are upset with the Federal Government. It does not make sense. Why not have new automobiles be able to go to test and repair stations that already exist, but older automobiles could go to central testing? There are any number of other ways that we could choose to implement the intent of the legislation without violating any of the basic provisions and save a whole lot of money and a whole lot of aggravation. Another example is in Alexandria, and this is one of the reasons why I offered the unfunded mandates legislation, the FAIR Act, 4 years ago. EPA said that we had to separate our sewage from our storm water runoff. But they said we have to do it in a way that every other jurisdiction does it. For Alexandria, it meant digging up streets that were laid down 200 years ago, that were surveyed by George Washington, that are supporting very expensive historic structures. We would have had to dig under all those homes and streets to lay an additional storm water piping. We had an alternative to have a retaining tank down in Old Town. Members have probably not noticed it because it is not even obvious. We could do it with very little money, accomplish the same purpose, with no threat to the health of our citizens, at a fraction of the cost, and yet it was unacceptable to EPA because they had one cookie cutter approach they wanted every jurisdiction to implement. This is the case with many Federal agencies, so what this amendment would do, Mr. Chairman, is to say, ``If you get better ideas from State and local governments on how to implement these regulations, or from the private sector, use that better thinking. Take advantage of it. Work with States and localities and businesses, and let us do the public's business in the most efficient and effective manner possible.''

Mr. MORAN. Mr. Chairman, I offer an amendment, my amendment No. 2.

Mr. MORAN. I thank the gentleman from Connecticut [Mr. Gejdenson] for his comments.

Mr. MORAN. I yield to the gentleman from Connecticut.

Mr. MORAN. Reclaiming my time. I thank the gentleman for the explanation. I am concerned that with such an important bill if we do not give the Commission that is delegated the responsibility of defining mandates and determining their impact, then all of this effort is for nought if we do not have sufficient resources to carry out this responsibility. So I have some concern with not providing sufficient funds. I do not want underscore the importance of having the Advisory Commission on Intergovernmental Relations take on this responsibility. For those of you who are not familiar with it, it is chaired by the former Governor of Mississippi, Bill Winter; a very active member is the Republican mayor of Knoxville, TN, Victor Ashe, who is also president of the United States Conference of Mayors; a former senior staff person for the National League of Cities is executive director; Gov. Mike Leavitt is a very active member; the Democratic mayor of Philadelphia, Ed Rendell, is a very active member. It is totally bipartisan. In fact, it is fully committed to the principles espoused in the unfunded-mandates legislation we are currently considering. Over the last year, in fact, they have worked on defining a definition of mandates, the principles and processes involved in seeking relief for State and local governments, the guidelines for evaluating existing mandates and implementing mandate-relief legislation. So they are the ideal body. They were created 30 years ago, and they have a history of being responsive to the issue that has caused us, the Congress, to devote the last 2 weeks to the concerns of State and local governments. So I am strongly in support of this amendment to the legislation. I have some concern that within the legislation the Commission is required to come up with a criteria upon 60 days of enactment of this legislation. If we do not pass this amendment which designates ACIR, it is impossible to put a new Commission together in time to have the criteria, because the legislation actually designates the Commission to take operation within 60 days as well, so, in other words, the legislation empowers the Commission 2 months after enactment, but within 2 months after enactment, the Commission also has to have the report ready. So if we do not pass this amendment, we are going to have to revise some of the proposed legislation.

Mr. MORAN. I yield to the gentleman from New Mexico.

Mr. MORAN. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I also rise in support of this amendment. I would like to ask the gentleman from New Mexico the effect of deleting the specific $1 million portion of appropriations. Is that limiting or delimiting the ability of the Commission to function? I was walking over here as you were explaining it, I suspect, but I know that you made reference to the additional responsibilities that this Commission would have to take on as a result of the Senate action. Is it your intention to supply sufficient resources or to eliminate the resources that we would make available?

Mr. MORAN. You are correct if you can assume that we will overturn points of order consistently when they are raised.

Mr. MORAN. That is what they are being told and they are citing conversations that they have had with the proponents of the bill. So that is their understanding.

Mr. MORAN. I would tell the gentleman from Ohio that the National League of Cities represents more than 16,000 local jurisdictions. This is their understanding of legislation that affects them more than any other group.

Mr. MORAN. Mr. Chairman, I offer an amendment, amendment No. 3.

Mr. MORAN. Mr. Chairman, the purpose of this amendment is to treat the private sector in the same way that we treat the public sector. It is as simple as that. It only takes up one paragraph. The basic problem it gets at is that this piece of legislation has a fundamental flaw. On the very first day of this session, we passed legislation that said that every law that applies to private citizens ought to apply to the Federal Government as well, particularly to the U.S. Congress. But now this piece of legislation would say that every law that applies to private citizens and private businesses will not necessarily apply to State and local governments and that, in fact, it intends to exempt State and local governments from complying with many of the safeguards and the standards that will continue to be imposed upon private citizens and private businesses. The purpose of this amendment is to say that is not fair. We ought to treat the private sector in the same way that we treat the public sector. Ironically, the point of order provision in this legislation will end virtually all of our privatization efforts. It has that potential, Mr. Chairman. There is nothing wrong with the point of order that says that if we do not know the cost of legislation that is being imposed on State and local governments and private businesses, then that legislation ought to be subject to a point or order, because no longer ought we to pass the bill and then pass the buck to others to pay for it. But that point of order that requires a fiscal impact analysis makes sense, because it relies upon this Congress to exercise its judgment to determine whether or not the intent of the legislation is worth the imposition that it will impose on state and local governments and businesses. That is necessary. The vast majority of the Members of this Congress last year cosponsored legislation that would do that. This bill goes one step further. I think one step further that flaws the intent of the bill and will create unintended consequences that will haunt us for years to come, because it says that if there is not 100 percent funding for legislation, then there is no mandate. In effect, if the appropriations committees pass an across-the-board cut, that will trigger the option for States and localities to determine whether or not they want to implement legislation. Now, let me give Members some examples of the specific problem areas this will create. There are 16 million public employees. If, for example, we were to increase part B hospital insurance premium under Medicare, which may well have to be done to make that program solvent, we would not be able to fund it. We should not have to fund it. But it will make it optional for all 16 million public employees, all of the thousands of public entities that employ those employees, whether or not they want to come up with the premium. I cannot imagine any of them voluntarily paying that premium, which means that the 100 million private employees will not only have to pay their share of that Medicare increase, they will also have to make up for the fact that 16 million public employees do not have to pay for it. That is the problem we are trying to get at. We have 1,800 municipal power plants, almost 1,000 rural electric cooperatives who will be exempt from meeting new Clean Air Act requirements.

Mr. MORAN. Mr. Chairman, I think we are ready to vote here. The point is if we do not pass this amendment, we are going to hear from our private sector businesses who will be treated unfairly, who will lost their opportunity to compete with the public sector in a constructive way, and we are going to wind up having to change this bill down the road when we realize the unintended consequences of this legislation. So, I would urge my colleagues to treat the public and private sector alike, to approve this amendment, and mandates legislation.

Mr. MORAN. Mr. Chairman, I think the gentleman from Louisiana missed the point. I was not referring to last year. I was referring to the point that the gentleman from Louisiana tried to make, that if we pass this amendment it will essentially gut the intent of this legislation. That could not be further from the truth. And I would draw the attention of my colleagues to page 48, that says that With regard to the Unfunded Mandate Reform Act of 1995, it shall always be in order, unless specifically waived by terms of a rule governing consideration of a measure, to move to strike such unfunded Federal mandate from the portion of the bill that is open to amendment. And this is not affected by our amendment. The point is that with passage of this bill it will be in order for any Member of this House to strike an unfunded Federal mandate. That is what we want. All I am trying to get at is the disparity in the treatment of the public sector versus the private sector. I am not trying to eliminate any responsibility to address unfunded Federal mandates. And this bill would continue to do that.

Mr. MORAN. Mr. Chairman, I thank my friend from Massachusetts for yielding. Mr. Chairman, it is important to respond to what the gentleman from Louisiana said. When I brought up the fact that it would always be in order to strike any unfunded Federal mandate, the last thing the gentleman said was that that provision was in the bill of the gentleman from California [Mr. Condit]. It is not in this bill.

Mr. MORAN. Mr. Chairman, I thank the gentleman from Louisiana for yielding. I know my friend does not mean to be deliberately misleading, but I would ask my friend if he is aware that there is a provision in the bill that says that it is always in order to strike an unfunded mandate? And this amendment does not affect that.

Mr. MORAN. Mr. Chairman, will the gentleman yield?

Mr. MORAN

Mr. MORAN. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, we have gotten into the guts of our greatest concern over this legislation, so I would like to pursue this a bit. I think the gentleman from Mississippi [Mr. Taylor] may have the most extreme case. Being at the bottom of the Mississippi Delta and having every other State's sludge flow into his district is of understandable concern. We know how responsible our Representatives are from Missouri and Ohio, for example, but it is entirely conceivable, given the fiscal priorities, that they may not attach as much concern to cleaning waste water and storm water upstream as Mississippi would. So we can understand the disparity in responsibility. But I would like to use as an example another one that my friend from Mississippi used of the Potomac River, because we almost all of us cross the Potomac twice a day. Many of us drink, in fact I think everybody in the entire Capitol Hill complex drinks water from the Potomac River. That water is purified at the Dalecarlia plant. We would like to privatize that plant. This legislation will preclude us from being able to do that, because where there will be an option whether or not to abide by Federal regulations for States and localities, in other words the public sector, all those laws and regulations will apply to the private sector, so it precludes our ability to privatize out that function to a private utility. But even more importantly, let us consider the Potomac River. I see the gentleman from Fairfax County, VA [Mr. Davis], who I know realizes that 10 years ago if one fell into the Potomac River they had to get an immediate tetanus shot and probably resign themselves to some disastrous illness, but that is no longer the case. This is an example where clean water, Federal law and regulation worked. In fact they have beavers; you can fish for bass there. It is relatively clean water. I would not suggest we drink from it without it going through the water filtration plant. But the fact is that fish and animals can live in the Potomac River. That is a result of Federal law, Federal regulation, and an interstate compact. Now, under this legislation, since the Clean Water Act will authorize new activities, there will not be enough money under any circumstances to fully fund the cost of implementation of the Clean Water Act. It will become optional to localities. Now, I will address the point of the gentleman from Ohio [Mr. Portman] and the point of the gentleman from New Mexico [Mr. Schiff] in a moment. But assuming that we abide by the intent of this legislation and we do not impose that unfunded mandate on States and localities, then West Virginia, and we all know how clean the water is from that, and the senior Senator from West Virginia would be the first to tell us that, the fact is it would not have worked if West Virginia had not fully participated, but West Virginia had very little incentive. It was extremely expensive for them. It would not work for the District of Columbia unless Virginia contributed an enormous amount of money, likewise with Maryland. It only works if there is a Federal requirement that every jurisdiction contribute equally according to their respective responsibility. Now, what you are going to tell me is that do not worry about this, that in fact knowing this, the logic, the compelling arguments will be strong enough that we reauthorize the Clean Water Act regardless of the fact that it is an unfunded mandate, that we, in fact, do not trigger this option. Jurisdictions can decide whether or not they want to abide by it. Quite frankly, I think it is entirely likely that there will be an effort on the part of States and localities to get Members of this body to commit that when there is a point of order raised on an unfunded mandate that we will vote against imposing unfunded mandates on States and localities regardless of the issue, and we are going to get a large number of the proportion of this body committed to do that. We do not want to restrict ourselves in that way. I think it is entirely appropriate, in fact, it is the only responsible thing to do, to know what the cost is we are imposing on States and localities as well as the private sector. We should do it for the private sector, too. But we should give ourselves the option of exercising the judgment we were elected to do.

Mr. MORAN. Mr. Chairman, will the gentlewoman yield?

Mr. MORAN. Using this example, some bodies of water we have cleaned up. The commitment has been made by the Federal Government, the State, and to some extent local and regional governments. Those bodies of water were cleaned up. You are saying it only applies to additional efforts. But we are talking about other bodies of water that are not cleaned up. So, in other words, there are different levels of effort being expended by different jurisdictions. The Clean Water Act is going to not apply to the Potomac River in the way that the original authorization did, but it will apply to a whole lot of other bodies of water I am not familiar with, but where there will have to be increased levels of effort, expenditures, on the part of States and localities to accomplish what we did for the Potomac River, and all of that will fall under unfunded mandate legislation. If there is not adequate funding, you do have that provision that the executive branch can then determine what it wants to implement, but we are giving over that power to decide what part of this legislation should be implemented, giving it to another branch of government to choose which priorities, which are not necessarily State and locality priorities.

Mr. MORAN. Mr. Chairman, will the gentleman yield?

Mr. MORAN. Mr. Chairman, I thank the gentleman from Pennsylvania for yielding. The problem is not only what the gentleman from Mississippi has raised that there really will be no more money for any new activity at the Federal level with the balanced budget amendment, pay as you go, et cetera, but that the Clean Water Act, which will shortly be reauthorized, will in fact include new activities. So it will fall under this unfunded mandate legislation. So the provision that says that if it is simply a reauthorization, that will not apply, and in fact I do now know of any reauthorization that has been a strict, pure reauthorization of the existing activity. So the likelihood is all of these new environmental laws will in fact be applicable to unfunded mandates.

Mr. MORAN. Mr. Chairman, will the gentleman yield?

Mr. MORAN. Mr. Chairman, I thank the gentleman, and agree with his comments.

Mr. MORAN. Mr. Chairman, that is very nice of the gentleman from Missouri, and I appreciate it.